Wary Reception For Census Case Suit

Top Court Grills Litigants On Legal Standing To Block Year 2000 Sampling

December 01, 1998|By Jan Crawford Greenburg, Washington Bureau.

WASHINGTON — The Clinton administration on Monday urged the Supreme Court to allow use of statistical sampling for the 2000 census despite objections from House Republicans, who contend such adjustments would violate the Constitution's requirement for an "actual enumeration" of the U.S. population.

Several justices appeared wary of stepping into what they consider a political battle between the Republican-controlled House of Representatives and a Democratic administration.

During Monday's argument, the justices focused less on the merits of the case--whether the sampling violates the federal Census Act or the Constitution--than on the proposed procedures and whether the groups that sued to block them have any legal right to do so.

The stakes are high because the census numbers affect the distribution of billions of dollars in federal funding to cities and states. They also are used to determine the number of seats granted each state in the House and how congressional districts are drawn.

Seth Waxman, the solicitor general who argued on behalf of the Clinton administration, said the traditional way of conducting the national head count, in which census-takers tried to visit every household that didn't return survey forms, produced unreliable results that left out millions of people, primarily minorities and those in urban areas.

The 1990 census undercounted an estimated 8.4 million people and double-counted 4.4 million others. Experts said minorities and the rural and urban poor were missed at a higher rate than other groups because of language barriers, mistrust of government, lack of education and other factors.

In the 2000 census, Waxman said, the bureau would mail questionnaires to all known households in the United States, just as it has done in the past. Previously, about 65 percent of the households have mailed back the questionnaires, and the bureau expects a similar response this time.

But instead of sending surveyors to all non-responding households, it would send them only to enough to get information directly from 90 percent of the households. The bureau would assume the remaining 10 percent in a census tract will mirror the racial and ethnic composition of the people the surveyors contacted in their follow-ups. Sampling also would be used in a second phase, when the bureau would take random population samples of 750,000 households in every state to measure the extent of any undercount or overcount. It would use that information to adjust the initial tally.

"What the Census Bureau is proposing to do now is significantly different than what has been done before, but it is not as sharply different as what the other side suggests," Waxman said.

Waxman told the justices that previous censuses have included recalculations and estimates to gauge the population.

Lawyers for the groups challenging sampling said it is a vastly different approach because, for the first time, the bureau wouldn't try to physically count every person after it mails the questionnaires. They argued that the federal Census Act prohibits using sampling, as does the Constitution, which commands that an actual enumeration be conducted every 10 years.

Justice Sandra Day O'Connor asked Waxman how statistical sampling could be squared with that constitutional command. "Most people would think actual enumeration means a count," she said.

Waxman said an actual enumeration means a "good-faith effort to determine the number of persons in each state."

Justice John Paul Stevens illustrated what could happen if sampling is not used. He asked Maureen Mahoney, a lawyer who argued on behalf of the House Republicans, what a census surveyor would do if he went to a large apartment building but couldn't get any of the residents to respond.

Without sampling, Mahoney said, the surveyor would have to mark the building down as "zero," even if he knew it were filled with people.

"They can't guess," she said of census surveyors.

But the justices may not reach the merits of the case because they first must decide whether the parties involved have any legal right to challenge the use of sampling. Several justices suggested the House had no business suing because the issue is a political one between Congress and the White House.

"I don't like injecting us into a battle between two political branches," Justice Antonin Scalia said. "I don't see how you solve these interbranch disputes by dragging in a third branch."

Others suggested that the individual plaintiffs, who are from states that could lose congressional seats if sampling is used, have no legal right to be in court because they have suffered no actual injury. Waxman argued that only when the census is taken and it is proven the states lose seats can the lawsuit proceed.

"It seems to us the plaintiffs in this case are seeking an advisory opinion," he said.

In other matters Monday, the high court refused to get involved in a case challenging the Boy Scouts' ban on homosexual troop leaders. The legal issue was unclear in the case, however, and the court is certain to see it again as other cases presenting similar challenges wind their way through lower courts.

The court also refused to intervene in a case that confronted how and where to store nuclear waste. At issue was a 1982 federal law that said the Department of Energy would find a place to safely store the waste by February of this year. The department is still looking for a site.